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1979 DIGILAW 781 (ALL)

Shyam Behari Lal v. Patiram

1979-07-28

MURLIDHAR

body1979
JUDGMENT : MURLIDHAR, J. 1. This is a Defendant's second appeal arising out of a suit for declaration that the Plaintiff was the owner and Bhumidhar of plots Nos. 287, 297, 298 and 299 total area 3.52 acres, purchased by him for Rs. 1500/- from Defendant No. 2, Ram Charan, per sate deed dated 23.5.1963, registered on 25.5.1963. Also that the said land was not liable to be attached in execution of the decree in Suit No. 203 of 1963 obtained by Defendant No. 1 against Defendant No. 2 in a suit filed on 24.5.1963, in which an attachment order was obtained on 25.5.1963, on which date attachment before judgment was also made. The suit was filed under Order 21, Rule 63 CPC after the Plaintiff's objection in execution proceedings to attachment had failed. The decree-holder Defendant No. 1 contested the suit. 2. The finding of the trial court on the crucial issue which alone is in controversy in second appeal was that though Defendant No. 2 had sold the property to the Plaintiff with intent to defeat his creditors including the decree holder Defendant No. 1, the Plaintiff was a purchaser for consideration in good faith within the meaning of Section 53 of the Transfer of Property Act and, therefore, his transfer was not impeachable as a fraudulent one. On this finding the suit was decreed with costs. 3. In appeal by the decree-holder Defendant No. 1 the lower appellate court dittoed this finding of the trial court and dismissed the appeal with costs. The decree-holder Defendant has come up in second appeal. 4. The only point canvassed by the Learned Counsel for the Appellant is whether the finding about the Plaintiff's good faith is sustainable. The basis on which this finding was arrived at by the trial court were : (i) the Defendant had failed to prove that the sale was without consideration and Rs. 730/- had not been paid before the sale deed and Rs. The basis on which this finding was arrived at by the trial court were : (i) the Defendant had failed to prove that the sale was without consideration and Rs. 730/- had not been paid before the sale deed and Rs. 770/-before the Sub-Registrar, (ii) possession had been passed to the Plaintiff, (iii) the Defendant had represented that he had to sell the property as he needed money for the marriage of his son and to pay off the debt of the Cooperative Bank, (iv) the evidence of the decree-holder that he had told the Plaintiff about his decree and asked him not to get the sale deed executed was not believable and the Plaintiff was not proved to have knowledge that Ram Charan was indebted to Defendant No. 1, (v) the evidence showed that Ram Charan's house in the village had fallen and he was in railway employment at Agra, (vi) the Plaintiff was not related to or friendly with Defendant No. 2, the Plaintiff being a Chamar by caste and Defendant No. 2 being a Lodh and (vii) even the consideration could not be regarded as inadequate for the decree-holder had himself mentioned the value of the property as Rs. 1200/- in his application for execution and as Rs. 1400/- in his statement under Order 21, Rule 66 CPC dated 16.3.1963. He had conceded in his oral evidence that he thought that this was the proper market value and it was only later on when the property was actually auctioned for Rs. 5,500/- that he realised that the property was worth so much. In my opinion, these are relevant and legitimate basis for the finding that the Plaintiff was a transferee in good faith for consideration. 5. Learned Counsel has, however, urged that there can be no good faith if the vendee does not actively make enquiries about the indebtedness of the vendor and does not prove this. It was pointed out that the Plaintiff has not stated so in his evidence. It is not possible to accept this proposition. Even if good faith is treated as implying a duty to act with a reasonable degree of prudence, it is impossible to say that a vendee must investigate the financial status and indebtedness of the vendor before his purchase could be protected from impeachment as a fraudulent transfer. It is not possible to accept this proposition. Even if good faith is treated as implying a duty to act with a reasonable degree of prudence, it is impossible to say that a vendee must investigate the financial status and indebtedness of the vendor before his purchase could be protected from impeachment as a fraudulent transfer. To my mind, if this principle is accepted there would also have to be a duty to investigate about the assets of the vendor. All this is far fetched and impractical. It would also be beyond the means of an average purchaser to embark on enquiries of this kind. Care that law asks of a purchaser in good faith is that of an average purchaser and not that of a legal expert who wants to insure against every possible future controversy. It is sufficient for good faith if the purchaser makes enquiries about the title and about the occasion for sale and has no knowledge of any circumstance like indebtedness that might be suggestive of an oblique motive for the transfer. This test is satisfied in the present case. The good faith of the Respondent cannot, therefore, be assailed on this plea. 6. The next point raised was that inadequacy of consideration was sufficient to exclude good faith in this transaction. The Appellant, however, never made this a ground of attack in the courts below and led no evidence as to what was generally regarded as the market value or for that matter what the Plaintiff regarded as the real value of the property. In fact the decree-holder himself in his evidence, as noted earlier, admitted that even he thought the property worth Rs. 1200/- or Rs. 1400/- and got wise only when it was auctioned for Rs. 5,500/-. If he was thus mistaken about the value the Plaintiff's bad faith can hardly be questioned on the ground that he paid only Rs. 1500/-. I am, therefore, satisfied that there is no good ground for questioning the concurrent finding of the courts below about the Plaintiff's good faith. 7. The appeal fails and is hereby dismissed with costs.